United States District Court, W.D. Virginia, Charlottesville Division
K. Moon United States District Judge.
Charlottesville City Council (“Council”), in an
effort at responsive government, holds “matters by the
public” periods at its meetings, during which a citizen
can speak for three minutes on essentially any topic he
wants. The subject-matter of this period is unlimited and
unrelated to the meeting's agenda: As conceded at oral
argument, people can “talk about totally irrelevant
matters if they want to” that “may not even
relate to the City.” Despite this breadth, the
Council's rules prohibit seven topics or types of speech
during public comment periods. The rule challenged here bans
speakers from making “defamatory attacks on
Joseph Draego is a local citizen who asserts that allegedly
unfettered Muslim immigration into his hometown poses a
public safety risk. He attempted to share his views with the
Council on June 20, 2016. After first stating that many
Muslims were good people, Plaintiff later, in explaining his
anti-immigration view, said Muslims were “monstrous
maniacs” who perpetrate “horrible crimes.”
Citing the Council's group defamation rule, the Mayor
(who presides over Council meetings) called for and received
a vote to cut off Plaintiff's speaking time and remove
him. Police officers dragged Plaintiff, who lay prone on the
floor in protest of Council's vote, from the meeting hall
to applause. He sued, alleging violations of his rights under
the U.S. and Virginia Constitutions. The City of
Charlottesville asks for judgment in its favor, and Plaintiff
requests an injunction against the group defamation rule.
central question in this case is: Can a local
government-consistent with the Constitution-open a forum for
citizens to address their elected representatives on whatever
subject they believe merits attention, yet then ban speech it
deems to be a “defamatory attack” on groups?
Here, the answer is “no.” Because the group
defamation rule offends the First and Fourteenth Amendments
on its face and as applied to Plaintiff, the Court will
enjoin its use.
City has one central, substantive defense of the group
defamation rule: Apply Steinburg v. Chesterfield County
Planning Commission, 527 F.3d 377 (4th Cir. 2008). That
case held (with important caveats discussed later) that a
content-neutral rule banning “personal attacks”
in a limited public forum (i.e., during a planning
commission hearing convened solely to discuss whether to
defer an agenda item to the next meeting) was not facially
City's reliance on Steinburg is misplaced for
several reasons. To name a few: (1) the Supreme Court changed
the content-neutrality test for rules about speech in 2015,
so Steinburg's 2008 analysis is outdated; (2)
the forum here was opened so widely that there were
practically no subject-matter limitations, casting
significant doubt on both the legitimacy of the group
defamation rule and the City's post hoc interest
in curtailing allegedly “irrelevant” speech.
These and other points result in the application of strict
scrutiny to the group defamation rule, which it cannot
survive because the City has neither asserted nor shown a
compelling governmental interest. Moreover, the City fails to
put forth any colorable argument why the group defamation
rule is not void for vagueness.
these reasons and those that follow, the City's request
for dismissal will be denied, and Plaintiff's motion for
a preliminary injunction will be granted.
THE PENDING MOTIONS AND THE RELEVANT LEGAL STANDARDS
City originally sought to dismiss the complaint. (Dkt. 4).
Under the applicable standard, the Court would disregard the
complaint's legal conclusions and construe the facts in
Plaintiff's favor to decide whether they stated a viable
legal theory. See generally Ashcroft v. Iqbal, 556
U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). Facts outside the complaint would not be
consulted unless they were subject to judicial notice.
reciprocated by filing a motion for a preliminary injunction.
While briefing these motions, the parties liberally filed and
cited to various documents and evidence. Though unproblematic
for the preliminary injunction, some of these
documents-including affidavits- ordinarily would not be
considered on a motion to dismiss without converting it to a
motion for summary judgment. See Fed. R. Civ. P.
12(d). The Court thus intended to employ a motion-to-dismiss
analysis (factually limited to the complaint and a
judicially-noticeable video of the June 20th
meting), then consult the additional evidence
when ruling on injunctive relief.
argument, however, the City sought to convert its motion to
dismiss to one for summary judgment. The Court asked
Plaintiff whether he had any additional evidence (beyond what
his attorneys previously entered into the record before they
withdrew) to submit. He said he did not. (Hr'g Tr. at
the Court will take the City's motion as one for summary
judgment. Although the Court must construe the facts in
Plaintiff's favor, see Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), here the material facts are not in dispute.
The “Matters by the Public” Comment Period during
beginning and end of every Council meeting, the Council holds
a “matter by the public” comment period
(“public comment period”). (Dkt. 10-1
[hereinafter “Rules”] § D.1). Speakers may
speak only once during each public comment period, are
limited to three minutes speaking per period, and must
directly address the Council. Id., § D.5. The
purpose of the public comment period is for a speaker to
“ to state a position,  provide information to
the City Council,  comment on the services, policies and
affairs of the City, or  present a matter that, in the
speaker's opinion, deserves the attention of [the] City
Council.” Id., § D.4.
the Council's rules specifically prohibit seven topics or
categories of speech, including campaign statements and the
promotion of “private business
ventures.”Rules, §§ D.9(a)-(b). As most
relevant here, the Council prohibits “defamatory
attacks on individuals or groups.” Id., §
D.9(g). It also forbids using “profanity or vulgar
language or gestures.” Id., § D.9(c).
These prohibitions are not further defined, and Rule D.9(g)
is challenged only insofar as it applies to defamatory
attacks on groups, not individuals. Thus, the Court refers to
Rule D.9(g) as the “group defamation rule.”
Mayor is the presiding officer at Council meetings and is
tasked-according to the Rules-with preserving order and
decorum. Rules § C.1. Speakers who violate the
Council's Rules are supposed to be called to order by the
Mayor. If the violation continues, then the Mayor may
instruct the speaker to stop talking and sit down. If that
instruction is not followed, then the Mayor can order that
the speaker be escorted from the meeting room. Id.,
§ D.10. The Mayor can also order removal “for a
serious violation of these rules, disruptive behavior, or any
words or action that incite violence or disorder . . .
.” Id., § D.11.
to the Council's clerk, the Council adopted its rules and
procedures in February 2016, a few months before the meeting
that spawned this case. (Dkt. 17 ¶ 2).
is active in civic affairs, having appeared before the
Council many times to express his views about important
issues in the City. (Dkt. 9 ¶ 2). He believes, based on
his readings, that “when a critical mass of Muslims are
in a community, there are inevitably threats to the safety of
that community.” (Id. ¶ 3). He attended
the June 20, 2016 Council meeting and signed up to speak
about his “concerns about [the City] receiving an
unlimited and unvetted [sic] number of Muslim
refugees into the community.” (Id.).
The City Council Meeting of June 20, 2016
Plaintiff's initial comments
June 20th meeting, Mayor Michael Signor introduced the public
comment period. (Video 00:18:08). He then read the
“guidelines for public comment, ” noting that the
Council “welcome[s] public comment” as “an
important part of our meeting”:
Please follow these guidelines for public comment.  If
you're here to speak for a public hearing, please wait to
speak on the matter until the report of that item has been
presented and the public hearing has been opened.  Each
speaker has 3 minutes to speak, please give your name and
address before beginning your remarks.  Please do not
interrupt speakers, whether or not you agree with them. 
Please refrain from using obscenities. If you cannot follow
these guidelines you will be escorted from City Council
Chambers and not permitted to reenter.  And then
there's also the other guidelines that are in our
procedures that we have. Just pay attention to the timing
here, yellow when you're getting close to the end of the
3 minutes and red when the 3 minutes are up.
(00:18:08-00:19:15; see also dkt. 16-2 at ECF 2
(copy of guidelines). These guidelines thus incorporate by
reference the Rules, including the group defamation rule.
Mayor then recognized Plaintiff as the first speaker.
Plaintiff explained his view that-although many “people
from the Middle East” are “real good
people”-some are not, and thus the Council should
undertake “some methodology” or
“system” to curtail “unrestricted,
I have come here again today to speak to you all about my
deep concerns about the unrestricted, unrestrained
immigration of people from the Middle East, many of whom are
real good people. But, unfortunately, some of them are not.
And we need to devise some sort of a system to make sure that
those people that are doing bad things in Europe do not come
here to Pleasantville Charlottesville.
Case in point, I specifically mentioned last time I was here
Amarillo, Texas. Remember? You remember? Amarillo, Texas. A
Somali Muslim took the manager of a Wal-Mart and several of
his associates hostage; a S.W.A.T. team had to come and kill
him. That's on the news.
Secondly, it turns out that Amarillo, the Yellow Rose of
Texas, has the highest reported incidents of rape in the
state of Texas. Want to know why? It's very simple, just
like it is everywhere else: because they have the largest
ratio of Muslim migrants to indigenous peoples living there.
That's why. Just like it is in Dresden, Germany; just
like it is in Oslo, Copenhagen; just like it is in Utica, New
York; just like it is in Birmingham, Britain; it's always
the same thing. When we reach a critical mass of Muslims,
then things start to change.
Right now, Pleasantville here hasn't hit that mass. But
we're having more and more of those folks coming in here.
I'm not saying they shouldn't come here; I'm
saying that there needs to be some methodology for making
sure that bad people don't come here. And by the way,
[Vice-Mayor] Wes [Bellamy], you and I just talked about this.
Why does the IRC not bring any Arab Christians into this
community? It's only Arab Muslims. Why is that? I wish
someone could tell me.
Secondly, and a far more horrendous story, this just came
out. Twin Falls, Idaho. It's on their local news.
Five-year-old girl kidnapped and raped by three Syrian Muslim
boys ages 13, 9, and 8. The 13-year-old raped her; he was old
enough to do that. The 9- and 8-year-old, who were not old
enough to ejaculate, urinated in her mouth and all over her
This last comment-the recounting of vivid details of a
purported gang rape-drew an interruption from Councilmember
Kristin Szakos, who asked if Plaintiff “realized that
there are children watching on TV?” Mayor Signer then
interjected that “we try to prevent description of
Szakos's question provoked a brief exchange between
herself, Plaintiff, and the Mayor that resulted in
Plaintiff's time being extended:
Plaintiff: It's free speech.
Szakos: I'm asking a question.
Plaintiff: Pardon me?
Szakos: Can you just keep in mind that there are children
watching on TV.
Plaintiff: Well, I'm keeping in mind that there are
children here in this community that need to be protected
from your reckless policies.
Mayor Signer: Let's just let him . . .
Plaintiff: So please do not lecture me.
Szakos: I'm not lecturing you.
Plaintiff: Well, please don't. You've just taken some
of my valuable time and I want it back.
Szakos: You have it now.
Plaintiff: You have a habit - in fact, you're not even
supposed to be talking.
Signer: We'll give you your time back.
Plaintiff: Thank you. Neither of you are supposed to be
talking to me. Your rules are that you don't speak to us.
That's your rules and you both just broke your rules
again. Don't break your rules. If I have to follow your
rules, you damn well will follow them also.
Now, later, two young Muslim men - you can imagine how
traumatized her parents are, and her grandmother - later two
young Muslim men came and threatened the child's mother,
warning her not to call the police, which they did do. This
is a quote from a retired Department of Homeland Security
Officer, Phillip Haney…
(00:21:35-00:22:30). At that point, Plaintiff's extended
time expired, and Mayor Signor reminded him that “we
have a free speech-we have a free period at the end of the
meeting when you can also speak.”
initial public comment period remained open for additional
citizens, who shared their views without incident on issues
such as: city parking; concealed gun possession as protection
against “radical Islamic terrorists” who are
“vicious animal[s], ” (00:26:00-00:27:00);
but see id. 00:33:30-00:35:00 (advocating
against concealed carry in private businesses)); toxic mold
and water damage in housing; and, pedestrian safety
Gun control resolution and the second public comment
of its consent agenda, the Council considered a resolution
presented by Councilmember Szakos calling for
“statewide and national gun control legislation, and
for local control over gun regulation.”
(01:55:05-01:58:00). The resolution as introduced and read by
Szakos was, in part, a reaction to the then-recent mass
shooting at the Pulse nightclub in Orlando, Florida. The
Council debated the resolution for approximately thirty
minutes before voting unanimously in its favor; it then
opening the final public comment period governed by
“same rules that were read out at the beginning.”
first three speakers addressed the Council's gun
resolution, with the first speaker supporting it and the
second two opposing it. (02:25:55-02:30:05). The second
speaker decried the supposed “hypocrisy” of the
resolution because it sought limitations on guns that
citizens might use to protect themselves, but the Council
retained armed officers for its protection.
Plaintiff's second comments and forcible removal
then approached the lectern and began his comments:
. . . Why in the world would we trust any of you? You
hypocrites. You talk, you talk about safety. You want public
safety, but none of you, none of you have the courage to
mention that the shooter happened to be a Muslim.
And, in fact, in the Koran, Mohammed, the deviant monster
that he was, said, this is a direct quote from Mohammed the
Profit of God. He is a profit of god, the question is, which
god is what I'm wondering about. He, himself, said,
“Kill the sodomites and those who allow themselves to
be sodomized.” That's a quote, almost verbatim,
from the Koran.
And so the Muslims, monstrous maniacs that they are, read
their holy book and then they go out and perpetrate these
Mayor then interrupted Plaintiff before the conclusion of his
time, and the following exchange occurred:
Signer: I'm gonna, I'm gonna interrupt you because we
actually prohibit defamatory attacks on . . . groups in our
rules. We actually do, and it's duly passed . . .
Plaintiff: But the Constitution guarantees me . . . no, no,
no . . . the Constitution guarantees me the right to free
speech, and I am allowed to speak my mind, and I will do so.
Signer: We have, we have full authority to . . .
Plaintiff: The Consti. . . no, no, no, your defamatory
[sic] rules do not overcome the Constitution.
Signer: I'd like to request his removal.
Plaintiff: I have a right to speak my mind.
Signer: Is there a council vote for removal of Mr. Draego?
[Council votes for removal]
Plaintiff: I have a right to speak.
Plaintiff: The Constitution guarantees me the right to free
point, as police officers approached, Plaintiff lay prone on
the ground in front of the lectern. Plaintiff stated from the
floor that he would “refuse to be quiet. He's
[i.e., the shooter] a Muslim who shot those people
and he did it because hates, he hates gays. . . . And shame
on you all for violating my constitutional rights. [To
the officers] No sir, you can drag me out of
here.” The police officers obliged, dragging Plaintiff
from the meeting hall by his arms as some citizens in
attendance applauded. (02:31:28-02:32:05).